Ashby v Police
[2023] NZHC 2869
•13 October 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-160
[2023] NZHC 2869
BETWEEN DARREN JAMES ASHBY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 October 2023 Appearances:
P N Dyhrberg for Appellant
G E R Alloway for Respondent
Judgment:
13 October 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 13 October 2023 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
ASHBY v NEW ZEALAND POLICE [2023] NZHC 2869 [13 October 2023]
Introduction
[1] Darren Ashby was sentenced to two years and two and a half months’ imprisonment by Judge Couch1 for one charge of dishonestly taking a vehicle,2 one charge of dishonestly and without claim of right using a debit card,3 one charge of intentionally damaging property,4 one charge of arson,5 one charge of contravening his driving prohibition,6 and one charge of failing to stop.7
Facts
[2] The victim of the offending was the owner of two adjacent farm properties. On 29 January 2023 around 11 pm, Mr Ashby was locked out of the victim’s property by his partner due to his drunken and aggressive state. Mr Ashby proceeded to smash a window to gain entry. He then left the property and walked to a farm property owned by the victim. He proceeded to pour petrol on the ground three metres in front of two elevated fuel tanks, one containing petrol and the other diesel. He then set fire to the poured petrol.
[3] Mr Ashby broke a glass filter and poured diesel onto the ground from one of the tanks, although it did not reach the lighted petrol. At this time, a neighbour saw the fire and extinguished it with water from a dog bowl. The victim’s home was around 200m from the blaze. Mr Ashby then ran toward the victim’s house and yelled abuse. Mr Ashby got into the victim’s vehicle and, using the keys which were in the ignition, drove to a petrol station. Mr Ashby was banned from driving on 12 November 2016 because he never held a licence.
[4] Around 2:28am on 30 January 2023, Mr Ashby used the victim’s debit card, located in his car, to spend $121.90 on cigarettes and petrol. He then purchased another item at $4.50.
1 Police v Ashby [2023] NZDC 16092.
2 Crimes Act 1961, s 226(1); maximum penalty seven years’ imprisonment.
3 Section 228(1)(b); maximum penalty seven years’ imprisonment.
4 Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment.
5 Crimes Act s 267(2)(a); maximum penalty seven years’ imprisonment.
6 Land Transport Act 1998, s 52(1)(c); maximum penalty $10,000 fine.
7 Sections 52A(1)(a)(ii) & 114(2); maximum penalty $10,000 fine.
[5] Around 4:19 am Mr Ashby ignored a road detour in Rakaia and drove through Chertsey. He drove through a police crash cordon. He ignored the direction of firemen to turn around and took off at speed. He ignored flashing lights when approached by police in Ashburton and took off once again. He eventually stopped at Ealing and was subsequently arrested.
District Court Decision
[6] The Judge noted the serious nature of an arson charge, saying it was clearly the lead charge. The Judge also noted the potentially catastrophic consequences of Mr Ashby’s conduct; it was a matter of luck that the fire did not spread to the diesel when Mr Ashby poured it out. The occupants of the dwelling 200 m away were very likely asleep and it was even more fortunate someone was around to extinguish the fire.
[7] Considering the offending was at least somewhat pre-meditated, the Judge took a starting point of two years and three months’ imprisonment for the arson charge. A starting point of ten months’ imprisonment was adopted for the unlawful taking of a motor vehicle charge. An uplift of four months was applied for the other offences. This led to an end starting point of three years and five months’ imprisonment. The Judge then made a totality adjustment, saying it was from 43 months to 38 months.
[8] A full 25 per cent reduction was allowed for Mr Ashby’s early guilty plea, entered promptly following the arson charge amendment. A five per cent reduction was allowed for Mr Ashby’s relative youth and immaturity at the time of the events. The end sentence was two years, two months and fourteen days imprisonment and
$121.90 in reparations.
Principles on appeal
[9] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should
be imposed.8 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.9 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.10
Submissions
Appellant’s submissions
[10] Mr Dyhrberg, counsel for Mr Ashby, first notes that the Judge’s true starting point totalled to 41 months’ imprisonment (not 43), meaning the totality discount was only three months rather than five.
[11] Mr Dyhrberg then points out that there are some clear distinctions between arson offences charged under s 267(1) and those charged under s 267(2), as here. Because Mr Ashby is charged under s 267(2), actions which involve damage by fire to “any property if he or she knows or ought to know that danger to life is likely to ensue” or any “immovable” or specifically identified forms of property referred to in s 267(1), are actions which are excluded from the charge Mr Ashby faces.
[12] In terms of the Judge’s assessment of the seriousness of the offending, Mr Dyhrberg notes the distance of 200m from the dwelling place (being equivalent to two football fields) is significant. To that end, he suggests the Judge’s statement that Mr Ashby “chose to go [to the victim’s] house and no other place to light this fire” is not accurate. Mr Dyhrberg submits there is a relevant difference between going to a person’s house and going to an open area which is 200 m away from that house.
[13] Mr Dyhrberg cites R v Smith as involving a significantly more serious example of arson that saw the Court of Appeal reduce a sentence of three and a half years’ imprisonment to two years’ imprisonment.11 He additionally cites R v Gemmell, a case where, when mitigating and unusual external factors were considered, 17 months’
8 Criminal Procedure Act 2011, ss 250(2) and 250(3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
10 Ripia v R [2011] NZCA 101 at [15].
11 R v Smith CA31/82, 13 May 1982.
imprisonment was not viewed by the Court of Appeal as manifestly excessive.12 He also refers to Police v Murray, where a 30 month starting point was taken for much more serious offending.13 Considering these cases, Mr Dyhrberg submits an appropriate starting point would have been between 17 and 21 months’ imprisonment. He finally notes the Crown’s submissions are flawed in their reliance on cases that involve attempted arson (which addresses offending involving immovable property or any ship, vehicle or aircraft), which is not the case here, and where the maximum penalty is 10 years not seven years.
[14] Mr Dhyberg concludes that if an appropriate starting point of between 17 and 21 months’ imprisonment was taken, with the same uplifts imposed and the same percentage discounts, the end sentence would not have been more than 23 months’ imprisonment.
Respondent’s submissions
[15] For the Crown Mr Alloway submits the sentence was within range and the appeal should be dismissed. Mr Alloway was unable to find any analogous decisions under s 267(2)(a) but cites Hazeldine v Police as an example of retributive action (involving arson) by the appellant in the context of a relationship.14 A starting point of two years and four months’ imprisonment was adopted in that case, accounting for the fact the defendant was motivated to emotionally harm his partner. Mr Alloway submits Mr Ashby’s case is even more serious because the person who extinguished his fire was put in mortal danger.
[16] Mr Alloway cites Dawson v Police,15 George v Police,16 Wilson v Police17 and Shufflebotham v Police18 where starting points of 12–14 months were imposed for unlawfully taking or using a motor vehicle, in support of the Judge’s ten-month uplift for the unlawful taking charge. Mr Alloway submits the four-month uplift for the
12 R v Gemmell CA 257/96, 2 October 1996.
13 Police v Murray [2017] NZDC 17691.
14 Hazeldine v Police [2016] NZHC 1132.
15 Dawson v Police [2021] NZHC 3441.
16 George v Police [2020] NZHC 1725.
17 Wilson v Police [2021] NZHC 402.
18 Shufflebotham v Police [2015] NZHC 3114.
balance of the charges was not out of range and notes Judge Couch could justifiably have uplifted the sentence for Mr Ashby’s previous relevant convictions. Finally, Mr Alloway noted that considering Mr Ashby was only four days away from his 25th birthday at the time of offending, a five per cent discount for immaturity was generous.
Analysis
[17] The key issue on appeal is whether the starting point, on the lead charge of arson, was too high, leading to a manifestly excessive end sentence. The first issue to consider is whether the Judge accurately identified the aggravating factors having regard to the summary of facts and the charge laid. I accept Mr Dhyrberg’s submission that the Judge overstated some of the risks associated with the offending, particularly when it is noted that this was not a charge which involved an allegation that the offender knew, or ought to have known, that danger to life was likely to ensue. In my view, the risk to the house on the adjacent property, which was 200 m away, was overstated. The real risk was of catastrophic damage to the two fuel tanks on the farm.
[18] However, even then, it was incorrect to say, as the Judge did, that Mr Ashby lit the fire “under” the tanks. He lit it three metres away from the tanks and that is why, it appears, the fire was able to be put out with nothing more than the water from the dog bowl. Thus, I accept that there was a risk to the two fuel tanks (and a potential risk to anyone attempting to put out the fire had it advanced any further), but there was no obvious risk to people or the dwelling house, nor, as it transpired, was there any property damage beyond some fuel being burnt, and the damage Mr Ashby caused to the glass filter.
[19] Accordingly, I consider the starting point of two years and three months’ imprisonment was too high. While the cases cited by Mr Dyhrberg were of some age, and so were less transparent in terms of the true starting point, it is clear that lesser sentences were imposed for more serious offending. I am fortified in that view by the case cited by the respondent, Cowie v Police, albeit that was attempted arson involving trying to burn the car of the appellant’s former partner’s male acquaintance.19 A
19 Cowie v Police HC Christchurch CRI-2006-409-198, 3 November 2006.
starting point of only two years was imposed, when the maximum was 10 years’ imprisonment. As in this case, the attempt to use fuel to damage another’s property did not work. The difference here is that the fuel was that of the victim.
[20] In Hazeldine v Police, involving a charge of attempted arson which carries a maximum sentence of 10 years’ imprisonment as opposed to seven here, the defendant had an argument with his partner, and when she left the property with the children, he set fire to one of the curtains. Upon being told by the defendant that he had done this, his partner went back inside and extinguished it. The starting point of two years and four months was held to be at the top of the range, although not manifestly excessive having regard to the fact the defendant was motivated to emotionally harm his partner.20 While there are some parallels with this case, there is a difference between attempting to damage a domestic home and attempting to damage structures in an open field. The former is more serious.
[21] In Johnstone v Police, the defendant lit a cardboard box next to a laundromat. When he could not extinguish it, he left it and the fire spread to the laundromat causing external damage in the sum of $5,000. While the charge he faced under s 267(3) of the Crimes Act carried a lower five year sentence of imprisonment, the High Court adopted a starting point of nine months’ imprisonment.21
[22] In Stone v R, two defendants who planned to set fire to a house they were tenants in, and indeed, 10 days prior had taken out $95,000 worth of insurance cover for their contents, and caused damage in the region of $150,000, received a starting point of three years’ imprisonment for charges under s 267(1).22 By comparison, Mr Ashby’s case was an impulsive act and which caused no real damage.
[23] I also consider it is less serious than the offending in Lilo v R, where the appellant with her co-offender planned and carried out an arson attack on a cell tower, rendering it inoperable and requiring the fire service to extinguish the fire.23 The appellant then bragged about the offending in text exchanges with her co-offender the
20 Hazeldine v Police, above n 14, at [31].
21 Johnstone v Police [2021] NZHC 1560.
22 Stone v R [2016] NZHC 1289.
23 Lilo v R [2021] NZCA 642.
following morning. The starting point for her offending was two years’ imprisonment, upheld by the Court of Appeal. Overall, given the impulsive nature of the offending, the lack of damage, and, on balance, the potential risk to property, I consider a starting point of 20 months’ imprisonment should have been adopted.
[24] No issue is taken with the other adjustments to sentence. I agree the 10 month uplift applied for the unlawful taking charge was appropriate as was the four month uplift for the other offending. I agree a modest uplift could have been imposed for previous relevant convictions, the most recent including:
(a)failing to stop (2020)
(b)unlicenced driver fails to comply with prohibition (2020);
(c)unlawfully takes vehicle (2019);
(d)unlicenced driver fails to comply with prohibition (2019); and
(e)wilful damage (2019).
[25] Like the District Court Judge, I would have given a full credit for the appellant’s guilty plea. While I accept five per cent for “immaturity” might be considered unusual for someone who is almost 25, in reality, the label “immaturity” could well refer to personal factors identified in the pre-sentence report, including the traumatic experience of discovering his mother deceased when he was 10, his strained relationship with his father and unspecified “substance abuse”. A discount for these factors is appropriate.
[26] To summarise, the cumulative total of the sentences imposed is 34 months, which I would adjust to 32 months for totality. To that, I need to apply the five per cent uplift for prior convictions and the 30 per cent credit for guilty plea and other factors, meaning a net discount of 25 per cent. That comes to an end sentence of 24 months. That sentence allows a sentence of home detention to be considered. There is no home detention address formally proffered, however, I am advised there is the possibility of a home detention address. Accordingly, I reserve leave for
Mr Ashby to apply for home detention. Given the issues Mr Ashby has with compliance and self-control, the address would need to be carefully vetted, but that is a matter for the District Court Judge, if and when such an application is made.
Result
[27] The appeal is allowed, the sentence of two years two and a half months’ imprisonment on the arson charge is quashed and in its place, a sentence of two years’ imprisonment is imposed. The sentences on all the other charges are unaltered, including the order to pay reparation.
Solicitors:
Crown Solicitor, Christchurch
Copy to:
P N Dyhrberg, Barrister, Christchurch
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